The Spousal Maintenance and Property Order Tests, the Clean Break Order and Anti-avoidance Provisions

• Pages: 159-178

CHAPTER 8

THE SPOUSAL MAINTENANCE AND PROPERTY

ORDER TESTS, THE CLEAN BREAK ORDER AND

ANTI-AVOIDANCE PROVISIONS

PART ONE

THE SPOUSAL MAINTENANCE AND PROPERTY

ADJUSTMENT ORDER TESTS

1. INTRODUCTORY

In exercising its discretion in the making of a spousal financial relief order at the high court

level in respect of an application for spousal maintenance or in respect of a spousal mainte-

nance and property adjustment order, the court’s objective always is to arrive at a fair and just

outcome. In keeping with thatobjective, the matrimonial legislation of the respective CC juris-

dictions prescribes the approach or test to be applied to the statutory factors applicable to the

making of a spousal maintenance order, or depending on the CC jurisdiction, both a spousal

maintenance and property adjustment order. Given the different statutory tests applicable to

the CC jurisdictions with respect to spousal maintenance and property adjustment applica-

tions, this chapter will examine, as a preliminary issue, the test adopted by the respective CC

jurisdictions in making spousal maintenance and property adjustment orders, as the case may

be, at the high court level.

2. CLASSIFYING THE TESTS BY CC JURISDICTION

The tests or approaches adopted by the courts in the respective CC jurisdictions fall into the

following categories:

a. The Reasonable Requirements Test – applicable to spousal maintenance and property

adjustment orders in the case of the married spouse – Anguilla, BVI, Dominica, Grenada,

St Lucia, SVG, The Bahamas and Trinidad and Tobago.

b. The Equal Sharing Yardstick Test in Big Money cases only – applicable to spousal mainte-

nance and property adjustment orders –Grenada.

c. The Means and Ability Towards Self-Sufficiency Test – applicable to spousal maintenance

orders only – Antigua and Barbuda, Barbados, Jamaica and St Kitts and Nevis and in the

case of Trinidad and Tobago, applicable to a maintenance application made by a quali-

fying cohabitant. With respect to Barbados and Jamaica in the case of property

adjustment applications, while the court is required to make an order which the justice of

the case requires, there is no applicable statutory test as is the case with respect to spousal

maintenance orders. In the case of Antigua and Barbuda and St Kitts and Nevis, there is

no provision for the making of statutory matrimonial property adjustment orders.

Property adjustment orders are made in all instances pursuant to common intention

constructive trust principles;

d. The Means and Ability Test – applicable to spousal maintenance (alimony) orders only –

Belize, Montser rat and Guyana. In the case of Guyana and Belize, while there is no

statutory test to be applied to the relevant property adjustment provisions, the applicable

factors are essentially contribution driven. With respect to Montserrat, as is the case with

respect to Antigua and Barbuda and St Kitts and Nevis, property adjustment orders are

made exclusively in accordance with common intention constructive trust principles.

3. THE REASONABLE REQUIREMENTS TEST – Anguilla, BVI,

Dominica, Grenada, St Lucia, SVG, The Bahamas, Trinidad and

Tobago1

A Introductory

The respective spousal maintenance and property adjustment statutory provisions of the

above-mentioned jurisdictions are based on the English matrimonial model. However, while

the statutory factors or matters which the court takes into account in making an ancillary relief

order are equivalent, if not identical to the current MCA, 1973 England as amended, unlike

England the statutory tailpiece, with the exception of Grenada, has not been removed.

The statutory tailpiece in effect formed the basis of the reasonable requirements test

applied by the courts in England when making a financial spousal support order, regardless of

the financial status of the parties. With the removal in England of the tailpiece without

replacement as of July 12, 1984, by the passage of the Matrimonial and Family Proceedings

Act, 1984, the reasonable requirements approach has been modified by the so called equal

sharing yardstick in surplus assets cases or what is referred to as Big Money cases.

However although the statutory tailpiece has not been removed, with the exception of

Grenada, from the respective matrimonial legislation of the above-mentioned CC jurisdic-

tions, the case law which is examined below, reveals that the courts of some of the CC

jurisdictions have adopted the equal sharing yardstick approach, and have done so, in some

instances, regardless of the financial circumstances of the parties, and even where fellow judges

of those courts in other judgments, have expressly stated that the equal sharing yardstick is

inapplicable.

B The tailpiece defined

The tailpiece as the term implies comes at the end of the statutory provision which sets out the

factors to be taken into account by the court in making a maintenance and/or property adjust-

ment order. The purpose of the tailpiece is to provide guidance to the court in applying those

factors so as to ensure that in so doing the court arrives at a fair and just outcome

The tailpiece in effect instructs the court that in applying the relevant statutory factors in

the exercise of its powers in respect of making maintenance and property adjustment orders,

as the case may be, ‘to place the parties, so far as practicable, …just to do so, in the financial

position in which they would have been if the marriage had not broken down and each had

properly discharged his or her financial obligations and responsibilities towards the other’.

160 Commonwealth Caribbean Family Law

1 Anguilla – s.27(1), MPPA RSA c.M60; BVI – s.29(1), MPPA 1995; Dominica and Grenada – s.25(1), MCA

1973, England; St Lucia – s.25(1), Divorce Act Cap.4.03; SVG – s.34(1), MCA CAP.239; The Bahamas –

s.29(1), MCA CH.125; Trinidad and Tobago – s.27(1), MPPA Chap.45:51.